On certification to the Superior Court, Appellate Division, whose opinion is reported at 339 N.J. Super. 10 (2001).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue before the Supreme Court is whether the parole ineligibility requirement of the No Early Release Act (NERA) applies to a second-degree conviction for possession of a firearm with the purpose to use it unlawfully against another person.
Brian Parolin was indicted in Monmouth County for (1) pointing a loaded firearm at his former girlfriend, a fourth-degree offense; (2) making terroristic threats against the former girlfriend, a third-degree offense; (3) possession of a .22 caliber rifle with a purpose to use it unlawfully against the former girlfriend, a second-degree offense; and (4) aggravated assault on the former girlfriend by causing or attempting to cause serious bodily injury to her, a second-degree offense. All of the offenses were alleged to have occurred on October 23, 1998, at the same time and place.
On March 13, 2000, Parolin pled guilty to the fourth-degree charge of pointing a loaded firearm and the second-degree possession of the rifle for use unlawfully against the former girlfriend. At the plea hearing, Parolin was told he was subject to the Graves Act and that the State would be seeking a NERA term of parole ineligibility.
On April 20, 2000, Parolin was sentenced. The trial court declined to impose a NERA sentence, reasoning that it was bound by the Appellate Division's decision in State v. Johnson, which held that possession of a firearm for an unlawful purpose did not qualify for a NERA sentence. The State appealed the resulting Graves Act sentence, and the Appellate Division affirmed.
The Court granted the State's petition for certification.
HELD: Under the factual circumstances of this case, defendant's second-degree unlawful possession of a firearm with the purpose to use it unlawfully on another person came within the scope of NERA as it stood at the time of the offense.
1. When pleading guilty to possession of the rifle for an unlawful purpose, Parolin used the factual underpinning for his guilty plea to fourth-degree aggravated assault to establish the required identifiable purpose for possession of the weapon. In the Court's view, Parolin's testimony at the plea hearing clearly established that he committed a violent crime within the meaning of NERA. (pp. 5-10)
2. The version of NERA that was in effect at the time of Parolin's offenses defined "violent crimes," in part, as "any crime in which the actor causes death, causes serious bodily injury...or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2d. Based on Parolin's own sworn testimony, he came within NERA's scope by pointing a rifle at the victim and threatening to shoot her if she did not leave his house immediately. To the extent that the Appellate Division's decision in State v. Johnson is inconsistent with this holding, it is overruled. (pp. 10-13)
3. Subsequent to the entry of the judgment of conviction and the Appellate Division's review of this case, the Legislature amended NERA to enumerate specifically the first- and second-degree offenses to which it applies. NERA was amended in response to court decisions in State v. Manzie (murder not applicable to NERA because it had a separate sentencing statute), State v. Mosley (NERA does not apply to tender years sexual assaults without physical force), and State v. Thomas (same issue as Mosley). The current list of NERA offenses does not include second-degree possession of a firearm for unlawful use against another person. The current version of NERA should not, however, be applied retroactively to the facts of this case. Criminal law legislation is presumptively prospective in effect. (pp. 13-16)
JUSTICE LONG, dissenting, in which JUSTICE ZAZZALI joins, would affirm the judgment of the Appellate Division. She is of the view that NERA is meant to apply only to the "most violent" first- and second-degree offenders in our society. The facts supplied by Brian Parolin at his plea hearing fall far short of establishing him as a member of the class of offenders NERA was intended to cover. The exclusion of Parolin's offense from the amended version of NERA sheds further light on the original meaning of NERA and should have been considered by the Court in assessing this case.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division to merge the aggravated assault conviction with the conviction for possession of a rifle to use unlawfully against the person of defendant's former girlfriend, and to impose a NERA sentence.
CHIEF JUSTICE PORITZ and JUSTICES STEIN and LaVECCHIA join in JUSTICE COLEMAN's opinion. JUSTICE LONG has filed a separate dissenting opinion in which JUSTICE ZAZZALI joins. JUSTICE VERNIERO did not participate.
The opinion of the court was delivered by: Coleman, J.
This case requires us to determine whether the parole ineligibility requirement of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applies to a second-degree conviction for possession of a firearm with the purpose to use it unlawfully against another person, a violation of N.J.S.A. 2C:39-4a. In State v. Thomas, 166 N.J. 560, 573 (2001), we held that when "the elements of [an] offense charged against a defendant do not contain as an element proof of any one or more of the NERA factors, there must be proof of an independent act of force or violence or a separate threat of immediate physical force to satisfy the NERA factor." We hold that although the elements of some second-degree unlawful possession of firearms, explosive substances or destructive devices offenses under N.J.S.A. 2C:39-4 do not contain a NERA factor, in this case defendant's acknowledgment at his plea hearing that, contemporaneously with the unlawful possession of a loaded rifle, he used that rifle unlawfully against his former girlfriend by pointing it "right at her . . . to scare her . . . and threatened to shoot her" to get her to leave his house, satisfied a NERA factor.
Defendant was indicted for: (1) pointing a loaded firearm at his former girlfriend, a fourth-degree offense under N.J.S.A. 2C:12-1b(4); (2) making terroristic threats against his former girlfriend, a third-degree offense under N.J.S.A. 2C:12-3b; (3) possession of a .22 caliber rifle with purpose to use it unlawfully against his former girlfriend, a second-degree offense under N.J.S.A. 2C:39-4a; and (4) aggravated assault on his former girlfriend by causing or attempting to cause serious bodily injury to her, a second-degree offense under N.J.S.A. 2C:12-1b(1). All of the offenses were alleged to have occurred on October 23, 1998 at the same time and place.
Defendant pled guilty on March 13, 2000 to fourth-degree aggravated assault for pointing the rifle at his former girlfriend and second-degree possession of a rifle to use unlawfully against his former girlfriend. He was informed during the plea hearing that he was "subject to the Graves Act and the State will also be requesting" a NERA term of parole ineligibility. At a sentencing hearing conducted on April 20, 2000, the trial court declined to impose a NERA term, reasoning that although the facts required a NERA sentence, it was not free to disregard State v. Johnson, 325 N.J. Super. 78, 89 (App. Div. 1999), holding that possession of a firearm for an unlawful purpose does not qualify for a NERA sentence. This Court initially denied Johnson's petition for certification on January 20, 2000. 163 N.J. 12 (2000). However, the Court on March 8, 2000 vacated that order and granted Johnson's petition for certification limited to his claim that NERA is unconstitutional. 163 N.J. 393 (2000). The Court modified and affirmed the Appellate Division's disposition of the constitutional claim on February 28, 2001 without deciding whether NERA covers second-degree possessory offenses. 166 N.J. 523 (2001). Because the trial court was bound to follow the Appellate Division's decision in Johnson, it sentenced defendant, pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the possessory offense to a custodial term of five years with three years of parole ineligibility, and a concurrent term of eighteen months on the aggravated assault. The issue before us concerns the difference between the thirty-six months of parole ineligibility imposed and the fifty-one months required by NERA, if applicable. On the State's appeal, the Appellate Division affirmed. State v. Parolin, 339 N.J. Super. 10 (2001). We granted the State's petition for certification, 169 N.J. 609 (2001), and now reverse.
The State, through the Monmouth County Prosecutor, argues that when defendant provided the factual basis for his guilty plea he admitted that he possessed and used the loaded rifle to threaten his former girlfriend, and that that admission triggered NERA. The State also argues that the Appellate Division misapplied this Court's decision in State v. Thomas. The Attorney General, as amicus curiae, also contends that because defendant admitted in his factual statement in support of his guilty pleas that "he used or threatened the immediate use of a deadly weapon by pointing a loaded firearm at the victim, threatening her, and eventually firing the weapon, causing injury to the victim," the Appellate Division erred in not applying NERA. Defendant argues that his non-NERA sentence is not illegal and, therefore, the State lacks authority to prosecute this appeal. We reject defendant's contention substantially for the reasons stated by the Appellate Division. State v. Parolin, supra, 339 N.J. Super. at 13-14.
First, we address the elements of second-degree possession of a firearm with purpose to use it unlawfully against another person and the proofs presented to establish those elements. Although the second-degree possessory charge is an inchoate offense in the sense that it seeks to deter the commission of other more serious crimes, the legislative intent is to focus on the intent or purpose for the possession rather than the possession itself. State v. Brims, 168 N.J. 297, 303-04 (2001). Possession of a firearm for an unlawful purpose has four elements:
(1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful. [State v. Diaz, 144 N.J. 628, 635 (1996).]
Proof of the fourth element "requires 'an identification of the unlawful purpose or purposes suggested by the evidence.'" State v. Brims, supra, 168 N.J. at 304 (quoting State v. Villar, 150 N.J. 503, 511 (1997)).
Possession of a firearm for an unlawful purpose generally falls into one of two main categories or a combination thereof. State v. Diaz, supra, 144 N.J. at 636. In the majority of cases the unlawful possession charge "'is coupled with a charge of an act accomplished with the gun.'" Ibid. (quoting State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989)). Under that scenario the criminal act effected with the firearm provides the factual underpinning that demonstrates that the firearm was possessed for an unlawful purpose. State v. Diaz, supra, 144 N.J. at 636. Under those circumstances, the substantive offense committed with the firearm merges with the possessory offense. Ibid. The second category into which the possessory offense falls is the one in which the unlawful purpose for possessing the firearm is established independently of the commission of a substantive offense. Ibid. The record before us fits within those cases in which use of the firearm to commit another offense (here, the aggravated assault) is used to establish the unlawfulness of the possession charge.
When pleading guilty to possession of the rifle for an unlawful purpose, defendant used the factual underpinning for his guilty plea to fourth-degree aggravated assault to establish the required identifiable purpose for possession of the weapon. To accomplish that purpose, defendant stated the following:
A: Well, Your Honor, I just took the gun out just to scare the girl, she was driving me crazy. I couldn't get her out of my house. I took the gun out to scare her. That is all I did.
[DEFENSE ATTORNEY]: May I ask some questions, Judge?
THE COURT: Yes. You better.
Q: While you were in the house, did you point ...